Mythbusting wills

There are some common misconceptions, some of which I’ll cover here. Most importantly, I will tell you how you can plan and prepare so you and your family know exactly what to expect.

The best way to ensure your assets pass to people and causes you care about is through proper succession planning, which starts with taking legal advice to prepare a valid and up to date will.

This can save your relatives time, money, and stress, as well as preventing conflict at what is already a distressing time.

After all, there’s a reason the first question we ask when notified of a death is: “Did they have a will?”

“I don’t need a will, my assets will automatically go to my family.”

This is not necessarily the case.

There are rules in Scots Law which provide a framework for dealing with an intestate estate (i.e., when someone has died without a will), but they may have unintended consequences.

The rules of intestate succession may not provide for cohabiting partners, blended families, stepfamilies, or anyone who might be ‘morally’ entitled to benefit from the estate.

 For example —

• The child who lovingly nursed their parent through their final years is entitled to the same as the child who hasn’t seen their parent for years

• The cousin who grew up with and shared a lifetime of love and friendship with the deceased gets the same as the cousin they never met

Making a will can provide much needed clarity and, in reality, sometimes it’s about planning for who you don’t want to inherit, as much as who you do.

“Making a will is complicated and expensive”

In the current economic climate when the Office for National Statistics reports almost 90% of adults in Great Britain continue to report their cost of living has increased, equal to around 46 million people, we appreciate cost is a concern.

However, making a will is often a quick, straightforward process, and therefore is one of the least expensive types of work carried out by solicitors.

Making one now will probably save money in the long run.

To illustrate, our fee for a simple will is £250 (£300 including VAT).

Not having a will means additional legal steps may be required to pass on your estate after your death. No will means no executor, so someone has to apply to court to be appointed as executor. This means additional legal work, which comes at a cost.

Here’s an illustration —

• Legal fees for appointing an executor: £400*

• VAT: £80

• Sheriff court fee: £20

• Bond of Caution (insurance policy): £330**

• Total: £830

*estimated fees for illustrative purposes, correct as of August 2023

**premium based on an estate worth approximately £300,000, correct as of August 2023

Of course, the legal fees could be significantly higher if the executor appointment is lengthy or complicated, or there may be ‘heir hunter’ costs if a family tree needs to be traced to find all of people who are entitled to benefit from the estate.

All additional costs of dealing with the estate means less going to your loved ones.

“I’ve made a will from the internet, so I’m covered”

You can, of course, write your own will.

That said, there are certain rules which must be followed to make sure your will is “self-proving”.

If these are not strictly followed, additional evidence and court procedure will be required to validate the will. Again, this means additional legal costs.

Also, a poorly written will could cause confusion and conflict instead of providing the desired clarity, meaning your wishes may not be understood or cannot be implemented.

“I’ve already got a will, so I don’t need to think about it”

Circumstances and priorities change.

The young couple who might be most concerned with ensuring their will appoints a legal guardian to care for their children, might later want to use it to ensure their assets are passed to their family instead of being used to pay for residential care.

We recommend reviewing your will every few years, or at least when there’s a major change in your life, such as marriage, divorce, birth, or a death. If no changes are needed there may be no cost at all, or simple changes can be made by using a codicil, which is usually around half the cost of making the will in the first place.

In conclusion

Taking legal advice and making a will gives you options and certainty about who receives your assets after your death. The process is probably not as expensive or complicated as you think and will probably save money in the long run.

To discuss further, along with wider business succession planning, inheritance tax mitigation, family, and asset protection planning, contact our private client team.